The Question Presented in the cert petition in Taylor v. United States, No. 07-13, is written in Garnerian “deep issue” format:
Military Rule of Evidence 504(c)(2)(A) bars either party from disclosing private marital communications unless the spouse asserting the privilege is accused of a crime against “the person or property” of the other spouse or a child of either spouse. The question presented is:
Whether the Court of Appeals for the Armed Forces erred when, in a trial for adultery, it ignored this Court’s precedent in Bassett v. United States, 137 U.S. 496 (1890), and held that adultery is a crime against the “the person or property” of the other spouse for purposes of the marital communications privilege?
Here’s the mea culpa. Upon rereading Taylor today, I discovered that the very argument I had previously contended should have been in the majority opinion — the importance of narrowly construing privilege rules to enhance the court’s truth-seeking function — actually is in the majority opinion. Sorry — my bad!